Izquierdo v. 34th Street Diner Inc
- Paul Gardephe
- 1:21-cv-04799
- U.S. District Court · Southern District of New York
- 5
In Izquierdo v. 34th Street Diner, Judge Gardephe granted remand because defendants filed removal after the statutory deadline.
Juan Izquierdo and the defendants in the employment-discrimination action. The federal case was closed and returned to the Supreme Court of the State of New York, New York County.
What happened
Juan Izquierdo sued 34th Street Diner Inc. and five individual defendants in New York state court, asserting federal and state employment-discrimination claims. The defendants removed the case to federal court on May 28, 2021, and Izquierdo asked the court to send it back.
The defendants acknowledged that they filed their removal notice more than 30 days after the complaint was filed. They argued that a state-court agreement extending their deadline to answer or otherwise respond also extended the deadline for removal, and that fairness allowed the court to excuse the delay.
Judge Paul G. Gardephe rejected those arguments, explaining that an agreement extending the response deadline does not extend the federal removal deadline. He granted Izquierdo’s motion to remand, directed the clerk to close the federal case, and ordered the matter returned to New York Supreme Court in New York County.
The detailed version
- Izquierdo v. 34th Street Diner Inc · No. 1:21-cv-04799
- Paul Gardephe
- Jan. 7, 2022
Background
Juan Izquierdo brought an employment-discrimination action against 34th Street Diner Inc., Scott Campbell, Ted Daniil, George Krpeyan, and Alexandros Sgourdos in the Supreme Court of the State of New York, New York County. The complaint asserted claims under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
Izquierdo served a summons with notice on October 21,
- The parties later stipulated to extend Izquierdo’s deadline to file and serve the complaint until April 1,
- Izquierdo filed the complaint on March 30,
- On April 28, 2021, the parties stipulated to extend the defendants’ deadline to answer or otherwise move concerning the complaint until May 28, 2021.
The defendants removed the action to federal court on May 28, 2021, asserting federal-question jurisdiction. Izquierdo moved to remand under 28 U.S.C. § 1447(c), arguing that removal was untimely because more than 30 days had passed since the complaint was filed in state court.
Analysis
Section 1446(b)(1) generally requires a defendant to file a notice of removal within 30 days after receiving the initial pleading that states the claims for relief. The court explained that federal courts strictly enforce this deadline, absent waiver or estoppel, and that the party removing the case bears the burden of showing that removal was timely and proper.
The defendants did not dispute that they filed their removal notice after the 30-day period expired. They argued that they reasonably believed the April 28 stipulation extending their deadline to answer or move also extended their removal deadline. The court rejected that argument, holding that an extension of time to answer a state-court action does not extend the separate federal deadline for removal.
The court also rejected the defendants’ reliance on a prior case involving a technical captioning error. In that case, the defendant had filed within the statutory period but labeled the filing incorrectly. Here, the defendants filed after the statutory period had expired, so the error was not merely technical.
The court found no basis for waiver or estoppel. The stipulation did not address removal, and there was no evidence that Izquierdo agreed not to seek remand, agreed to discontinue the action, or otherwise misled the defendants.
Disposition
The court granted Izquierdo’s motion to remand. It directed the Clerk of Court to terminate the motion, close the federal case, and return the matter to the Clerk of the Supreme Court of the State of New York, New York County. Judge Paul G. Gardephe signed the order on January 7, 2022.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.